Citation Nr: 0934244
Decision Date: 09/14/09 Archive Date: 09/23/09
DOCKET NO. 08-32 505 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Wilmington, Delaware
THE ISSUES
1. Entitlement to service connection for residuals of a head
injury.
2. Entitlement to service connection for headaches, to
include migraine headaches.
REPRESENTATION
Appellant represented by: Delaware Commission of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
G. Jackson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1974 to March
1977. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a rating decision issued by
the RO. The Veteran testified before the undersigned
Veterans Law Judge (VLJ) in a hearing at the RO in April
2009.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
The Board observes that during service the Veteran received
treatment for injuries sustained in an alleged assault as a
result of a robbery attempt in September 1976. The Veteran
reported that he was struck over his right eye with a pistol.
He did not lose consciousness and neurological check was
"ok." He had a noted abrasion over his right eyebrow;
there was no other noted eye abnormality. The Veteran was
advised of the signs and symptoms of head trauma and directed
to return to the clinic as needed. The Veteran contends his
claimed disorders are the result of this alleged assault. In
addition, the Board notes that the Veteran received treatment
during service for complaints of headaches on multiple
occasions.
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United
States Court of Appeals for Veterans Claims (Court) addressed
the four elements that must be considered in determining
whether a VA medical examination must be provided as required
by 38 U.S.C.A. § 5103A. Specifically, the Court held that
the third element, indication the current disability or
symptoms may be associated with service, establishes a low
threshold and requires only that the evidence "indicates"
that there "may" be a nexus between the two.
The Court further held that types of evidence that
"indicate" a current disability may be associated with
service include medical evidence that suggest a nexus but is
too equivocal or lacking in specificity to support a decision
on the merits, or credible evidence of continuity of
symptomatology such as pain or other symptoms capable of lay
observation.
Review of the record reveals that the Veteran has not been
afforded a VA examination, with an opinion as to the etiology
of his claimed disorders as is now "necessary" under
38 U.S.C.A. § 5103A(d). See McLendon supra.
Accordingly, the case is REMANDED for the following actions:
1. A letter should be sent to the
Veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A (West 2002
& Supp. 2009), the need for additional
evidence regarding his claims. The
letter should reflect all appropriate
regulations and legal guidance.
2. The RO should take appropriate steps
to contact the Veteran in order to have
him provide information referable to all
treatment received for the claimed
disorders since service. Based on the
response, the RO should undertake all
indicated action to obtain copies of all
clinical records from any previously un-
identified treatment source. The Veteran
should also be informed that he can
submit evidence to support his claims.
3. The Veteran should be afforded VA
examination(s) by the appropriate
physician(s) to determine the nature and
likely etiology of the claimed residuals
of head injury, to include headaches.
The Veteran's claims folder must be made
available for the physician's review
prior to the entry of any opinion. A
notation to the effect that this record
review took place should be included in
the examiner's report. All indicated
tests and studies are to be performed.
Based on a review of the claims file and
the clinical findings of the examination,
the examiner should opine as to whether
the Veteran has current residuals of a
head injury and headache disorders that
at least as likely as not (e.g., a 50
percent or greater likelihood) had their
clinical onset due to injury or event
sustained in service. A complete
rationale should be given for all
opinions and conclusions reached.
4. After completion of the above
development, the Veteran's claims should
be readjudicated. If the determinations
remain adverse to the Veteran, he and his
representative should be furnished with a
Supplemental Statement of the Case and
given an opportunity to respond thereto.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).